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This is a Bill, not an Act. For current law, see the Acts databases.


CRIMINAL CODE (CHILD PORNOGRAPHY AND ABUSE) AMENDMENT BILL 2004

         Queensland



Criminal Code (Child
Pornography and Abuse)
Amendment Bill 2004

 


 

 

Queensland Criminal Code (Child Pornography and Abuse) Amendment Bill 2004 Contents Page Part 1 Preliminary 1 Short title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 2 Commencement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Part 2 Criminal Code amended 3 Code amended in pt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 4 Amendment of s 1 (Definitions) . . . . . . . . . . . . . . . . . . . . . . . . . . 4 5 Insertion of new s 207A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 207A Definitions for this chapter . . . . . . . . . . . . . . . . . . . . . 5 6 Insertion of new ss 228A-228H . . . . . . . . . . . . . . . . . . . . . . . . . . 6 228A Involving child in making child exploitation material . . 6 228B Making child exploitation material . . . . . . . . . . . . . . . 6 228C Distributing child exploitation material . . . . . . . . . . . . 7 228D Possessing child exploitation material . . . . . . . . . . . . 7 228E Defences for ss 228A-228D. . . . . . . . . . . . . . . . . . . . 7 228F Excluding non-essential persons from court when child exploitation material displayed . . . . . . . . . . . . . . 9 228G Forfeiture of child exploitation material etc. . . . . . . . . 10 228H Possession etc. of child exploitation material by law enforcement officer. . . . . . . . . . . . . . . . . . . . . . . . . . . 11 7 Amendment of s 590AF (Meaning of sensitive evidence) . . . . . . 12 Part 3 Child Protection (Offender Reporting) Act 2004 amended 8 Act amended in pt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 9 Amendment of sch 2 (Class 2 offences). . . . . . . . . . . . . . . . . . . . 13 Part 4 Commission for Children and Young People and Child Guardian Act 2000 amended 10 Act amended in pt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 11 Amendment of s 99E (What is an excluding offence). . . . . . . . . . 13

 


 

2 Criminal Code (Child Pornography and Abuse) Amendment Bill 2004 12 Amendment of sch 2 (Current serious offences) . . . . . . . . . . . . . 14

 


 

2004 A Bill for An Act to amend the Criminal Code, and for other purposes

 


 

s1 4 s4 Criminal Code (Child Pornography and Abuse) Amendment Bill 2004 The Parliament of Queensland enacts-- 1 Part 1 Preliminary 2 Clause 1 Short title 3 This Act may be cited as the Criminal Code (Child 4 Pornography and Abuse) Amendment Act 2004. 5 Clause 2 Commencement 6 This Act commences on a day to be fixed by proclamation. 7 Part 2 Criminal Code amended 8 Clause 3 Code amended in pt 9 This part amends the Criminal Code. 10 Clause 4 Amendment of s 1 (Definitions) 11 Section 1-- 12 insert-- 13 `child exploitation material, for chapter 22, see section 207A. 14 classification officer, for chapter 22, see section 207A. 15 classified, for chapter 22, see section 207A. 16 computer game, for chapter 22, see section 207A. 17 film, for chapter 22, see section 207A. 18 material, for chapter 22, see section 207A. 19 publication, for chapter 22, see section 207A. 20 someone, for chapter 22, see section 207A.'. 21

 


 

s5 5 s5 Criminal Code (Child Pornography and Abuse) Amendment Bill 2004 Clause 5 Insertion of new s 207A 1 Chapter 22, before section 208-- 2 insert-- 3 `207A Definitions for this chapter 4 `In this chapter-- 5 child exploitation material means material that, in a way 6 likely to cause offence to a reasonable adult, describes or 7 depicts someone who is, or apparently is, a child under 8 16 years-- 9 (a) in a sexual context, including for example, engaging in a 10 sexual activity; or 11 (b) in an offensive or demeaning context; or 12 (c) being subjected to abuse, cruelty or torture. 13 classification officer means-- 14 (a) the computer games classification officer under the 15 Classification of Computer Games and Images Act 16 1995; or 17 (b) the films classification officer under the Classification 18 of Films Act 1991; or 19 (c) the publications classification officer under the 20 Classification of Publications Act 1991. 21 classified-- 22 (a) for a computer game--see the Classification of 23 Computer Games and Images Act 1995; or 24 (b) for a film--see the Classification of Films Act 1991; or 25 (c) for a publication--see the Classification of Publications 26 Act 1991. 27 computer game see the Classification of Computer Games 28 and Images Act 1995. 29 film see the Classification of Films Act 1991. 30 material includes anything that contains data from which text, 31 images or sound can be generated. 32

 


 

s6 6 s6 Criminal Code (Child Pornography and Abuse) Amendment Bill 2004 publication see the Classification of Publications Act 1991. 1 someone, in the context of a description or depiction, includes 2 the body parts of someone, including for example, someone's 3 breast or genitalia.'. 4 Clause 6 Insertion of new ss 228A-228H 5 After section 228-- 6 insert-- 7 `228A Involving child in making child exploitation material 8 `(1) A person who involves a child in the making of child 9 exploitation material commits a crime. 10 Maximum penalty--10 years imprisonment. 11 `(2) In this section-- 12 involves a child in the making of child exploitation material 13 includes-- 14 (a) in any way concerns a child in the making of child 15 exploitation material; and 16 (b) attempts to involve a child in the making of child 17 exploitation material. 18 `228B Making child exploitation material 19 `(1) A person who makes child exploitation material commits a 20 crime. 21 Maximum penalty--10 years imprisonment. 22 `(2) In this section-- 23 make child exploitation material includes-- 24 (a) produce child exploitation material; and 25 (b) attempt to make child exploitation material. 26

 


 

s6 7 s6 Criminal Code (Child Pornography and Abuse) Amendment Bill 2004 `228C Distributing child exploitation material 1 `(1) A person who distributes child exploitation material commits 2 a crime. 3 Maximum penalty--10 years imprisonment. 4 `(2) In this section-- 5 distribute child exploitation material includes-- 6 (a) communicate, exhibit, send, supply or transmit child 7 exploitation material to someone, whether to a particular 8 person or not; and 9 (b) make child exploitation material available for access by 10 someone, whether by a particular person or not; and 11 (c) enter into an agreement or arrangement to do something 12 in paragraph (a) or (b); and 13 (d) attempt to distribute child exploitation material. 14 `228D Possessing child exploitation material 15 `A person who knowingly possesses child exploitation 16 material commits a crime. 17 Maximum penalty--5 years imprisonment. 18 `228E Defences for ss 228A-228D 19 `(1) Subsections (2), (3) and (5) prescribe defences available to a 20 person charged with an offence against section 228A, 228B, 21 228C or 228D. 22 `(2) It is a defence for the person to prove that-- 23 (a) the person engaged in the conduct that is alleged to 24 constitute the offence for a genuine artistic, educational, 25 legal, medical, scientific or public benefit purpose; and 26 (b) the person's conduct was, in the circumstances, 27 reasonable for that purpose. 28 29 Example of something made for a `public benefit'-- 30 A current affairs television program showing children being tortured 31 during a civil war.

 


 

s6 8 s6 Criminal Code (Child Pornography and Abuse) Amendment Bill 2004 `(3) It is a defence for the person to prove that, at the time of the 1 alleged offence-- 2 (a) a classification exemption had been given to an entity 3 for the material that is alleged to be child exploitation 4 material; and 5 (b) the person engaged in the conduct that is alleged to 6 constitute the offence-- 7 (i) for a purpose for which the exemption was given; 8 and 9 (ii) in a way that is consistent with the exemption, 10 including any conditions imposed on the 11 exemption. 12 13 Example-- 14 A Brisbane medical school is given an exemption under the 15 Classification of Computer Games and Images Act 1995, 16 section 59, to allow the medical school to possess computer 17 images of tortured children, and to distribute the images to its 18 medical students. The exemption is subject to a condition that 19 the medical students are not allowed to distribute the images to 20 anyone, including to themselves at another computer. Amy, a 21 medical student, sends a copy of the images to her home 22 computer and also to her brother Bob's computer. Neither Amy 23 nor Bob could claim a defence under subsection (3), because 24 their possession of the images is not consistent with the 25 exemption. `(4) Whether conduct was engaged in for a purpose mentioned in 26 subsection (2)(a) or (3)(b)(i) is a question of fact. 27 `(5) It is a defence for the person to prove that the material alleged 28 to be child exploitation material is-- 29 (a) a computer game that, under the Classification 30 (Publications, Films and Computer Games) Act 1995 31 (Cwlth), is a film classified R or X; or 32 (b) a computer game, film or publication that is classified as 33 something other than RC. 34 `(6) For subsection (5), the material may have been classified 35 before, or may be classified after, the offence is alleged to 36 have been committed. 37

 


 

s6 9 s6 Criminal Code (Child Pornography and Abuse) Amendment Bill 2004 `(7) A certificate that states any of the following facts is evidence 1 of that fact-- 2 (a) whether a stated computer game, film or publication has 3 been classified; 4 (b) if a stated computer game, film or publication has been 5 classified--the classification given to the computer 6 game, film or publication. 7 `(8) In this section-- 8 certificate means-- 9 (a) a certificate under the Classification (Publications, 10 Films and Computer Games) Act 1995 (Cwlth), 11 section 87; or 12 (b) a certificate signed, or purporting to be signed, by-- 13 (i) for a computer game--the computer games 14 classification officer under the Classification of 15 Computer Games and Images Act 1995; or 16 (ii) for a publication--the publications classification 17 officer under the Classification of Publications Act 18 1991. 19 classification exemption means an exemption given under-- 20 (a) for a computer game--the Classification of Computer 21 Games and Images Act 1995, section 59; or 22 (b) for a publication--the Classification of Publications Act 23 1991, section 37. 24 `228F Excluding non-essential persons from court when 25 child exploitation material displayed 26 `(1) When material alleged to be child exploitation material is on 27 display in a courtroom, the court must exclude from the 28 courtroom anyone who is not an essential person. 29 `(2) An essential person is-- 30 (a) a party, or a person representing a party, to the 31 proceeding; or 32

 


 

s6 10 s6 Criminal Code (Child Pornography and Abuse) Amendment Bill 2004 (b) a Crown Law officer or a person authorised by a Crown 1 Law officer; or 2 (c) the prosecutor; or 3 (d) a witness giving evidence; or 4 (e) a person who a witness is entitled to have present in 5 court under the Evidence Act 1977, section 21A(2)(d) 6 or 21AV or the Criminal Law (Sexual Offences) Act 7 1978, section 5(1)(f); or 8 (f) a person whose presence is, in the court's opinion, 9 necessary or desirable for the proper conduct of the 10 proceeding; or 11 (g) a person who applies to the court to be present and 12 whose presence, in the court's opinion-- 13 (i) would serve a proper interest of the person; and 14 (ii) would not be prejudicial to the interests of any 15 child described or depicted in the child exploitation 16 material, whether or not any child can be identified 17 from the child exploitation material. 18 `(3) When forming an opinion under subsection (2)(f) or (g), the 19 court must consider the public benefit of limiting the number 20 of people with access to child exploitation material. 21 `228G Forfeiture of child exploitation material etc. 22 `(1) This section applies if a person is prosecuted for an offence 23 against-- 24 (a) section 210(1)(f);1 or 25 (b) section 228A, 228B, 228C or 228D. 26 `(2) Whether or not the person is convicted of the offence, the 27 court may order the photograph, visual image, or material that 28 is the subject of the offence be forfeited to the State. 29 1 Section 210 (Indecent treatment of children under 16)

 


 

s6 11 s6 Criminal Code (Child Pornography and Abuse) Amendment Bill 2004 `(3) If the person is convicted of the offence, the court may also 1 order that anything used to commit the offence be forfeited to 2 the State. 3 4 Example of a thing used to commit the offence-- 5 A computer, camera or sound recording device. `(4) Subsections (2) and (3) apply whether the thing to be forfeited 6 has been seized or is in its owner's possession. 7 `(5) The court may also make any order that it considers 8 appropriate to enforce the forfeiture. 9 `(6) This section does not limit the court's powers under the 10 Penalties and Sentences Act 1992, the Criminal Proceeds 11 Confiscation Act 2002 or another law. 12 `(7) When forfeited to the State, the thing becomes the State's 13 property and may be dealt with as directed by the chief 14 executive. 15 `228H Possession etc. of child exploitation material by law 16 enforcement officer 17 `(1) A person is not criminally responsible for an offence against 18 section 228B, 228C or 228D if-- 19 (a) the person is, at the time of the offence, a classification 20 officer or law enforcement officer acting in the course of 21 the person's duties; and 22 (b) the person's conduct is reasonable in the circumstances 23 for the performance of the duties. 24 `(2) In this section-- 25 law enforcement agency means-- 26 (a) the Queensland Police Service; or 27 (b) the Office of the Director of Public Prosecutions; or 28 (c) the Crime and Misconduct Commission; or 29 (d) any other entity of-- 30 (i) another State; or 31 (ii) the Commonwealth; or 32

 


 

s7 12 s8 Criminal Code (Child Pornography and Abuse) Amendment Bill 2004 (iii) another country; 1 that performs a similar function to an entity in 2 paragraphs (a) to (c). 3 law enforcement officer means-- 4 (a) a member or officer of a law enforcement agency, 5 including a person appearing for the director under the 6 Director of Public Prosecutions Act 1984, section 10(4); 7 or 8 (b) a person who is authorised, in writing, by the 9 commissioner of the police service, or the chairperson 10 of the Crime and Misconduct Commission, to help a 11 member or officer of a law enforcement agency; or 12 (c) a person who belongs to a class of persons that is 13 authorised, in writing, by the commissioner of the police 14 service, or the chairperson of the Crime and Misconduct 15 Commission, to help a member or officer of a law 16 enforcement agency.'. 17 Clause 7 Amendment of s 590AF (Meaning of sensitive evidence) 18 Section 590AF-- 19 insert-- 20 `(2) Child exploitation material under chapter 22, or material 21 alleged to be child exploitation material, is sensitive 22 evidence.'. 23 Part 3 Child Protection (Offender 24 Reporting) Act 2004 amended 25 Clause 8 Act amended in pt 26 This part amends the Child Protection (Offender Reporting) 27 Act 2004. 28

 


 

s9 13 s 11 Criminal Code (Child Pornography and Abuse) Amendment Bill 2004 Clause 9 Amendment of sch 2 (Class 2 offences) 1 Schedule 2, item 1(a)-- 2 insert-- 3 ` section 228A (Involving child in making child 4 exploitation material) 5 section 228B (Making child exploitation material) 6 section 228C (Distributing child exploitation 7 material) 8 section 228D (Possessing child exploitation 9 material)'. 10 Part 4 Commission for Children and 11 Young People and Child 12 Guardian Act 2000 amended 13 Clause 10 Act amended in pt 14 This part amends the Commission for Children and Young 15 People and Child Guardian Act 2000. 16 Clause 11 Amendment of s 99E (What is an excluding offence) 17 Section 99E-- 18 insert-- 19 `(c) an offence against the Criminal Code, section 228A, 20 228B, 228C or 228D.2'. 21 2 Criminal Code, section 228A (Involving child in making child exploitation material), 228B (Making child exploitation material), 228C (Distributing child exploitation material) or 228D (Possessing child exploitation material)

 


 

s 12 14 s 12 Criminal Code (Child Pornography and Abuse) Amendment Bill 2004 Clause 12 Amendment of sch 2 (Current serious offences) 1 Schedule 2, item 4-- 2 insert-- 3 `228A Involving child in making child exploitation material 228B Making child exploitation material 228C Distributing child exploitation material 228D Possessing child exploitation material'. State of Queensland 2004

 


 

AMENDMENTS TO BILL

1 Criminal Code (Child Pornography and Abuse) Amendment Bill 2005 Criminal Code (Child Pornography and Abuse) Amendment Bill 2005 Amendments agreed to during consideration 1 Clause 6-- At page 11, line 25-- omit, insert-- `Examples of conduct that may be reasonable for the performance of a law enforcement officer's duties-- 1 Copying child exploitation material for the purposes of preparing a brief for police prosecutors 2 Supplying child exploitation material to a classification officer for classification or to the Office of the Director of Public Prosecutions for use during the prosecution of a person for an offence 3 Keeping child exploitation material obtained during an investigation for legitimate intelligence purposes `(2) However, subsection (1) does not apply to the extent that the person's conduct consists of-- (a) engaging in an activity as part of an investigation of chapter 5 criminal activity; or (b) engaging in conduct that is directed to obtaining evidence of the commission of an offence against a particular person.1 `(3) In this section-- chapter 5 criminal activity has the meaning given by the Police Powers and Responsibilities Act 2000.'. State of Queensland 2005 1 See the Police Powers and Responsibilities Act 2000, chapter 5, which provides for the approval of, and protection from liability of persons involved in, controlled

 


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